MALAGOUDA Vs. SHANTAWWA

JUDGEMENT

(1.) This appeal is by the 1st respondent assailing the final decree drawn in FDP No.9/2013. Pending appeal, original respondent No.1 died and his legal heir i.e., appellant No.1A is brought on record and legal representative is permitted to prosecute the appeal.

(2.) The appellant herein has questioned the final decree passed in FDP No.9/2013, which is based on a preliminary decree passed in O.S.No.2/2005. The primary objection raised by the appellant herein is that the trial Court lacks jurisdiction under Sec. 54 of the Civil Procedure Code to appoint a Taluka Surveyor as a Court Commissioner and Feasibility Report submitted by the Court Commissioner and consequently, final decree drawn by the Court below are nullity and therefore would warrants interference at the hands of this Court.

(3.) The second limb of the arguments advanced by the learned counsel for the appellant pertains to the impracticability of the Feasibility Report concerning the division of the residential house. It is contended that if the said report is accepted, the property would be subjected to multiple fragmentations, rendering it unfit for effective use by the joint family members. Drawing the Court's attention to the sketch appended at page No. 36 of the appeal memo, learned counsel highlights that each plaintiff has been allotted a portion measuring only 9.2 feet by 29.8 feet. She argues that a 9-feet-wide portion of a residential house is not functionally viable, thereby defeating the very objective of a fair and equitable partition. Consequently, she submits that the acceptance of the Feasibility Report and the resulting final decree fail to adequately safeguard the equities and interests of the joint family. Accordingly, she urges this Hon'ble Court to set aside the final decree and remit the matter to the trial court for reconsideration, so that the parties may work out the equities in a more practicable and just manner.